Republicans Aren’t Just Playing Games on Judicial Nominations—They’re Coming for the Whole Court

Republicans see an opportunity to capture the second most powerful court in the country—the D.C. Circuit—and they are going for it.

Republicans see an opportunity to capture the second most powerful court in the country—the D.C. Circuit—and they are going for it. Chess winner defeats white king via Shutterstock

Compared to the other federal circuit courts, the D.C. Circuit is, in a word, different. It’s a difference rooted in the history of the court and in the nature of the work it performs, so much so that it’s readily considered the second most important court in the nation. And that’s precisely why Republicans are making a grab for it.

What Makes the D.C. Circuit Different?

Approximately one-third of D.C. Circuit appeals come from federal agency decisions. Nationwide, that figure is approximately less than 20 percent. Similarly, about one-quarter of the D.C. Circuit’s cases are other civil cases involving the federal government. Nationwide, that figure is closer to 5 percent. In total, about two-thirds of the cases before the D.C. Circuit involve the federal government in some capacity, compared to other circuits, where the federal government is represented in less than 25 percent of the caseload.

Because the D.C. Circuit hears so many cases involving federal regulations or where the federal government is a party, the nature of its work is also very different. For example, unlike other federal circuit courts, the D.C. Circuit does not have a federal prison within its boundaries. That means that prisoner petitions, which make up a significant portion of the workload of other courts of appeals nationwide, do not factor into the workload of the D.C. Circuit. In their place, the D.C. Circuit has handled terrorism and enemy combatant and detention cases, and complicated decisions and rule-making by the Environmental Protection Agency and other federal agencies. These cases are by their nature often extremely complex and time-consuming, a fact the profession readily recognizes. It is this reason primarily that the court is considered a national bench, with judges routinely appointed from outside the District of Columbia.

The Republican Plan to Keep the Court

Led by Sen. Chuck Grassley (R-IA), Republicans are conducting what Sen. Patrick Leahy (D-VT) has described as a “wholesale filibuster” of President Obama’s nominees to the D.C. Circuit Court of Appeals. This “wholesale filibuster” goes beyond their obstruction of nominees like Caitlin Halligan and the unexplainable delay of Srikanth “Sri” Srinivasan (who unlike Halligan was eventually confirmed) into what can only be described as court-packing by attrition. Grassley is pushing a bill misleadingly called the Court Efficiency Act that would eliminate three currently-unfilled seats on the D.C. Circuit. Grassley and supporters of the measure, like Maine Republican Susan Collins, insist the legislation is necessary because the D.C. court “is the least busy circuit in the country.” Funny thing is, Grassley’s numbers don’t add up.

One of the D.C. court’s greatest defenders is Chief Justice John Roberts, Jr., who in April 2013 told the Senate Judiciary Committee, on which Grassley sits, that “based on our current caseload needs, the D.C. Circuit should continue to function with 11 sitting judges.” Roberts’ conclusion came from his own experience on the bench and data from the Administrative Office of United States Courts, which found that the caseload per active judge for the D.C. Circuit has actually increased by 50 percent since 2005. Currently, there are approximately 188 pending cases for each active judge on the D.C. Circuit, which is more than 50 percent higher than in other circuits. By comparison, using that formula of the number of pending appeals divided by the number of active judges, the Court of Appeals for the Eighth Circuit, which encompasses seven states in the Midwest, including Sen. Grassley’s home state of Iowa, has the lightest workload of any circuit. But that didn’t stop Sen. Grassley from speeding through the recent of confirmation of Jane Kelly to the Eighth Circuit.

Grassley’s legislation first came to light when the D.C. Circuit had four of its 11 seats open. At the time, President Obama had nominated Caitlin Halligan to fill one of those seats. Halligan is by all accounts a mainstream judicial candidate who should have easily sailed through confirmation and appointment. But the National Rifle Association of America and anti-choice extremists opposed Halligan’s nomination, so Grassley and other Republicans in the Senate Judiciary Committee filibustered her nomination, then began moving forward with legislation to cut the remaining seats.

That Grassley’s moving forward despite opposition from other conservatives could represent the final bend in a historical arc that has pitted Jeffersonian conservatives against the federalists, with the role of the D.C. Circuit at the fulcrum—and that is now playing out in the war between Tea Party ideologues and their enablers like Grassley and Sen. Ted Cruz (R-TX) and the Republican establishment. Or it could simply be a calculated move to grab power and keep the nation’s second most important court in conservative hands for a long time to come. Given Grassley’s recent conduct, it’s likely both.

The Current Court and Why Republicans Want It to Stay As Is

The D.C. Circuit is roughly split between four Republicans and four Democrats. Confirmation of President Obama’s remaining nominees would tilt the balance heavily in favor of Democrats. On its face, it’s easy to see why Republicans want to slow this down; but the count ignores the role seniority plays in the federal judiciary. Many federal judges don’t retire. Instead they go to “senior status.” This makes their seat officially vacant but places them on part-time work, meaning they still wield influence.

There are six senior judges on the D.C. Circuit, five of which were appointed by Republicans. That’s nearly as many as the number of active judges. Like other federal courts, the D.C. Circuit hears cases in three-judge panels to start. In all of the cases decided in 2013, nearly 70 percent of the three-judge panels included at least one senior judge. The result is that almost 80 percent of the panels in 2013 were exclusively of majority Republican.

Results of the partisan make-up of the court are predictable. Recent decisions have skewed heavily in favor of management over labor, of corporation’s speech rights over truthful disclosures related to tobacco, and polluters over the ability of the EPA to regulate toxic emissions. Republicans like what they have, and they don’t want to give it up. The Wall Street Journal came out strongly in support of Grassley’s plan, while Grassley himself is going to extraordinary lengths to try and build the factual case for the bill—including, bizarrely, conducting an anonymous poll of sitting judges on their caseload and trying to submit those responses as testimony during committee hearings.

Sen. Harry Reid (D-NV) has insisted the Democrats are serious about getting President Obama’s nominees confirmed—so serious that he’s willing to end the filibuster all together. That’s good news, because Republicans look ready to kill off the nomination of Georgetown law professor Nina Pillard for her “militant feminism,” which includes the belief that public schools shouldn’t teach young girls to be financially dependent on their husbands and that a sex education program that reinforces sex stereotypes should be considered unconstitutional. But that threat, even if Reid carries it through, will not matter if Grassley and his allies are successful. Instead, conservatives will have managed to capture, perhaps indefinitely, the top two federal courts in the nation just as we are engaged in a full-scale battle over the relationship between the federal government and the private sector, the limits to the surveillance state, and the role religion should play, if any, in public life.

And there’s a practical consequence as well. The federal courts are already over-burdened and backlogged thanks to decades of under-funding. Grassley’s plan would only exacerbate this problem. Litigation in federal court already takes years and is a process many hope to avoid. The effect of further squeezing the court of necessary resources, either capital or human, dissuades parties from bringing claims, which when put in context of challenging agency action is its own form of insulating the government from accountability. In short, Grassley’s plan would accomplish everything the modern-day conservative movement is looking for: a way to simultaneously starve government while using its power and resources to enrich itself and its friends.